Chapter Twelve

Question 1

Define Justice

Answer 1

Justice is a society’s concept of fairness. It is based on the prevailing morals that we consider important in our society and attempts to provide examples on how people should behave within our society.

Question 2

Define Societal Justice

Answer 2

Another word for global justice, which is justice that is concerned in a wider scope of the human race, and often aims at global issues of injustice such as global poverty, destruction of the environment and racial or ethnic discrimination.

Question 3

Define Access and Equity

Answer 3

Access and equity is one of the fundamental principles of justice, and states that the level of access to justice should be the same for all people regardless of wealth, race, sex or religious views. All people should also have the same experience under the justice system regardless of any factors mentioned previously.

Question 4

Procedural Justice

Answer 4

Also, called natural justice, is a narrower focus of justice concerned with the idea of dispute resolution within a society.

Question 5

Define Due Process

Answer 5

The idea that the justice system is based on standardized rules and formalised steps which means that every person in the justice system is treated equally.

Question 6

Define Nolle Prosequi

Answer 6

An order that can be filed by the Office of the Director of Public Prosecutions before the begging of a criminal trial at the committal mention.

Question 7

Define Liberal Individualism

Answer 7

The view that the rights for an individual are the most important thing in a society which extends to the judicial system as well.

Question 8

Define Liberal Utilitarianism

Answer 8

The view that the safety of the community should be the priority for society. In justice, this extends to the idea that laws should be ‘tougher’ to make the community safer.

Question 9

Define Proportionality in Civil Trial

Answer 9

Reducing the overall costs to take legal action, and making sure that the cost of legal action is proportional to the magnitude and complexity of the legal issue.

Question 10

Define Timeliness in Civil Trial

Answer 10

The idea that disputes in civil trial should be resolved in a timely manner by reducing the complexity of pre-trial processes.

Question 11

Define Transparency in Civil Trial

Answer 11

Making the dispute resolution process more fair for both parties by ensuring greater disclosure between the two parties.

Question 12

Define Case-Management

Answer 12

This refers to the idea of the judge having a more direct role in court proceedings to speed up processes, such as discoveries and interrogatories.

Question 13

Define Judgements of Law

Answer 13

Legal decisions that are made by the judge or other legal officials in a trial which may have a direct impact on the outcome of the trials.

Question 14

Define Judgments of Fact

Answer 14

Concerns decisions based on evidence presented in the case, such as whether the defendant is liable or guilty. These decisions can be made by the judge or a jury, depending on the type of case.

Question 15

Define Incarceration

Answer 15

The action of imprisoning a person

Question 16

Define Recidivism

Answer 16

The rate of people who are re-offending after they have already served a term in imprisonment.

Question 17

Define Miscarriage of Justice

Answer 17

A wrongful conviction made by the judicial system.

Question 18

What is the difference between natural and societal justice?

Answer 18

Natural justice is more of a narrow focus on the idea of justice, concerning the systems of dispute resolution within a given society. Natural justice focuses on issues of fair hearings for individuals and equal treatment under the law. Societal justice is a much more broad view on justice, centring on justice that concerns the human race and world issues.

Question 19

Summarise the key principles of Natural Justice

Answer 19

• Disputes must be heard by a neutral and unbiased third party
• A hearing must allow both parties to express their argument in equal allotments of time
• Judgements must only be based on the presented evidence, and the reasons for all judgments must be made public

Question 20

Describe three main criticisms of the Australian justice system

Answer 20

• The quality of justice is not universal among all people, indigenous people for example can receive a far less effective form of justice than non-indigenous people due to language and cultural barriers
• Disputes are not resolved in a timely fashion, and generally there are a shortage of judges and over crowdedness exists within the court system. Additionally, the quality of state funded legal representation can be extremely poor.
• The justice system ensures inequality between parties in a legal dispute, as well as unfair hearings and verdicts against some members of society.

Question 21

Identify the key Advantages of Adversarial Law

Answer 21

• Adversarial law delivers due process, which ensures that the legal rights of every citizen are preserved and no one is discriminated against due to race, ethnicity and other factors. It also ensures that legal and judicial procedures are easy to follow and administrate.
• The decision to launch a legal dispute against another individual is up to the individual and not the court, which increases the rights of that individual. Moreover, individuals have the right to conduct their own case and form their own arguments to prove themselves right which increases their legal freedom.
• If an individual is ever dissatisfied with any process in the legal system, they can always launch an appeal to a higher court.

Question 22

Identify the key disadvantages of Adversarial law

Answer 22

• Party driven disputes are not so much centred on the truth as they are centred on winning the case for their own party
• Parties in a dispute are often unequal, in civil law one party may be able to afford to pay for a better lawyer. In criminal law, the pre-trial processes favour the prosecution.
• Lawyers with great knowledge of the system can manipulate the rules of evidence to gain an advantage in the case. Evidence may not be exposed on purpose for example, and rules of evidence can make some key evidence material inadmissible in court.
• The reliance of oral evidence can lead to inaccurate reports from witnesses and examination and cross examination of witnesses can be unnecessarily traumatic to the witnesses and victims.
• The fact that the defendant in a criminal trial has the right to remain silent has been questioned, many believe that it should be owed upon the defendant to testify and protect themselves.

Question 23

Discuss the effectiveness of imprisonment as a criminal sanction

Answer 23

The issue of imprisonment as an effective criminal has long been debated within our society, and it especially comes into contention currently since crime rates have been seen to have increased since the 2000s, which could suggest that imprisonment is not very effective. The main problem is that imprisonment is not seen as an effective method to reducing crime rate, some would even argue that it increases crime rate instead. Crime rates in prisons themselves are quite high, and the collection of societies criminals into one specific area in the right conditions can lead to prison becoming more of a crime school than a rehabilitation centre. Additionally, many say that prison does not offer any form of rehabilitation whatsoever, instead causing mental issues and making it extremely hard for prisoners to adapt to normal life once they are out of prison. This is made worse by the fact that is extremely difficult for ex-criminals to find a job which increases the rate of recidivism as criminals are motivated to return to a life of crime.
For example, in New South Wales 60% of inmates had been already admitted into prison, and 90% of Aboriginal women in WA are currently serving a second or more term. Popular solutions to this issue include the idea of increasing the funding and popularity of alternate criminal sanctions, such as house arrest, rehabilitation programs, bail or parole programs. These would be particularly effective for offences relating to mental health and substance abuse, which have become increasingly criminalized and are made far worse in prison.

Question 24

Review the checks and balances of the WA legal system in reference to the Andrew Mallard case

Answer 24

The Australian legal system contains several checks and balances, however the degree to which they are effective can be challenged when viewing cases such as the Andrew Mallard case. In this case, the courts and judge failed to check the powers of the police and public prosecutor’s office. The police launched a completely botched investigation and the head of the investigation took and extremely narrow focus on the case, refusing to consider alternate suspects or even investigate possible leads in the case. The DPP also purposely chose to omit evidence which was critical to the case and would have most likely changed the outcome of the case. This is a complete and utter failure in the judicial system, revealing how the judge and other court officials were unaware that the police were purposely neglecting new evidence and the DPP were purposely omitting evidence. This is all made worse by the fact that the people responsible for these transgressions were never fully held accountable for their actions.